Thursday, April 2, 2009

The Supreme Court decided Harbison v. Bell yesterday. The majority held that 18 U.S.C. Sec. 3599 requires, in some circumstances, that the federal government pay for a death row inmate's counsel in state clemency proceedings.

The holding is important and sound, I think; but, what is most interesting is Scalia's opinion concurring in part and dissenting in part. As we all know, Scalia espouses an original meaning approach and is generally opposed to reliance upon legislative history. Yet, Scalia's dissent rebuts a portion of the majority's reasoning with such history, to wit:

The current text of subsection (e) first appeared ina version of the bill that included what is now subsection (a)(1) (which the Court concedes deals only with federalproceedings), but not subsection (a)(2) (which the Court would deem applicable to state proceedings). 134 Cong.Rec. 22995 (1988). In other words, at the time of its intro-duction, subsection (e) applied only to federal defendants, and the phrase “or other clemency” was unquestionably superfluous.

Now, in Scalia's defense, he was only responding to the majority's use of the Congressional Record. But it is nonetheless importnat to note that Scalia is perfectly willing to depart from the originalism--which he vivacously defends--when it is convenient